Ellis v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 31 July 2017
• Neutral Citation: [2017] IECA 237
• Date: 31 July 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 237 Appeal No. 2016/337

[2017] IECA 237

THE COURT OF APPEAL

Birmingham J.

Birmingham J.

Mahon J.

Hedigan J.

Neutral Citation Number: [2017] IECA 237

Appeal No. 2016/337

BETWEEN

WAYNE ELLIS

APPELLANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Constitutional challenge – Sentencing provisions – Discretion – Appellant seeking a declaration that s. 27A(8) of the Firearms Act 1964 is unconstitutional – Whether the effect of the sentencing provisions of the Firearms Act 1964 was, in the case of persons appearing before the court with relevant prior convictions, to impermissibly fetter the discretion of a sentencing court

Facts: The appellant, Mr Ellis, applied to the High Court, seeking a declaration that s. 27A(8) of the Firearms Act 1964 as substituted by s. 59 of the Criminal Justice Act 2006 is unconstitutional. The appellant submitted that the effect of the sentencing provisions of the 1964 Act (as inserted by s. 59 of the 2006 Act) was, in the case of persons appearing before the court with relevant prior convictions, to impermissibly fetter the discretion of a sentencing court and to do so in a manner that offended the Constitution. Twomey J refused the declaration. The appellant appealed to the Court of Appeal against that decision.

Held by Birmingham J that he was in complete agreement with the conclusions arrived at by Twomey J and indeed with his reasoning. In Birmingham J’s view the Oireachtas is entitled to a considerable margin of appreciation when addressing sentencing policy; the threat to society posed by the unlawful use and possession of firearms is so serious that the approach they have opted for cannot be seen as irrational or disproportionate.

Birmingham J held that the High Court judge was correct in rejecting the constitutional challenge and he dismissed the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice Birmingham delivered on the 31st day of July 2017

1 This is an appeal from a decision of the High Court (Twomey J.) refusing a declaration that s. 27A (8) of the Firearms Act 1964 as substituted by s. 59 of the Criminal Justice Act 2006 is unconstitutional. I should say at the outset that I am in complete agreement with the conclusions arrived at by Twomey J. and indeed with his reasoning. I would therefore be in favour of dismissing the appeal. I propose to state briefly the reasons why I have come to the decision that I have.

2 The background to this case is that the appellant was charged with two offences arising out of events at Knocklyon Shopping Centre on 5th July, 2012. He was charged with the offence of possession of a sawn off shotgun contrary to s. 27A(1) of the 1964 Act and also charged with an offence contrary to s. 15(1) of the Criminal Justice (Theft and Fraud Offences) Act 2001 in relation to the possession of a sledgehammer, a plastic bottle containing petrol and socks with the intention that they be used in connection with an offence. A sentence hearing was held in the Dublin Circuit Court on 7th May, 2013. On that occasion the Court was told that the appellant had 26 previous convictions. Of particular relevance is that the previous convictions included two previous convictions of carrying a firearm with criminal intent contrary to s. 27B of the Act of 1964. One of these convictions gave rise to a seven year term of imprisonment with two years suspended on 7th July, 2009 and the other had given rise to a six year term of imprisonment with 5 months suspended on 7th May, 2003.

3 Having heard the evidence and plea in mitigation, Judge Ring adjourned matters to 29th July, 2013 so that she could consider the contents of a number of reports that had been submitted on behalf of the appellant. These reports indicated that Mr. Ellis was addressing a drug problem at Coolmine Drug Treatment Centre and also indicated that he had not come to garda attention since his release from custody almost a year earlier. In fact matters were not finalised on the adjourned date of the 29th July, 2013, but instead Judge Ring further adjourned the matter on a further three occasions in order to assess the progress of the appellant. Eventually, on 26th May, 2014, matters were finalised so far as the Circuit Court is concerned when a sentence of five years imprisonment in respect of the offence contrary to s. 27A(1) of the 1964 Act was imposed but suspended in its entirety for a period of five years upon his entering into his own bond in the sum of €200 to keep the peace and be of good behaviour. A concurrent three year sentence was imposed in respect of the s. 15(1) Criminal Justice (Theft and Fraud Offences) Act 2001 matter which was likewise suspended on the same terms. The Director of Public Prosecutions sought a review of the sentence on grounds of undue leniency. Before the review application came on for hearing this Court delivered a decision in the case of DPP v. Prenderville [2015] IECA 33 in which it was held that the wording of s. 27A(8) of the Act of 1964, i.e. ‘a term of imprisonment of not less than five years as the minimum term of imprisonment to be served’, required that a minimum of five years imprisonment must actually be imposed as distinct from imposed and suspended.

4 On 25th July, 2016, the Court of Appeal delivered judgment in respect of the undue leniency review and concluded that the trial judge had not been entitled to suspend any part of the five year sentence imposed on the firearms offence and thus proceeded to impose a term of five years imprisonment. Before the High Court and again before this Court it has been submitted on behalf of the appellant that the effect of the sentencing provisions of the Firearms Act 1964 (as inserted by s. 59 of the Criminal Justice Act 2006) was, in the case of persons appearing before the court with relevant prior convictions, to impermissibly fetter the discretion of a sentencing court and to do so in a manner that offended the Constitution.

The statute in issue

5 Section 27A of the Firearms Act 1964 (as inserted by s. 59 of the Criminal Justice Act 2006) so far as relevant provides as follows:

‘(2) A person guilty of an offence under this section is liable on conviction on indictment—

(a) to imprisonment for a term not exceeding 14 years or such shorter term as the court may determine, subject to s. 27A(4) to (6) of this section or, where subsection (8) of this section applies, to that subsection, and

…

(3) The court, in imposing sentence on a person for an offence under this section, may, in particular, have regard to whether the person has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences against the State Acts 1939 to 1998 or the ...